Exhibit 4.3
XXXXXXXX SCOTSMAN, INC.
REGISTRATION RIGHTS AGREEMENT
May 22, 0000
Xxx Xxxx Securities Fund, L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Dear Sirs and Mesdames:
Xxxxxxxx Scotsman, Inc., a Maryland corporation ("Company"), proposes to
issue and sell to Oak Hill Securities Fund, L.P. (the "Investor"), upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), $100 million principal amount of its 9 7/8% Senior Notes Due 2007
(the "Notes"). The Notes will be guaranteed (the "Guarantee") on a senior basis
by Mobile Field Office Company ("MFO") and guaranteed on a subordinated basis
(the "Subordinated Guarantee") by WillScot Equipment, LLC (collectively with
MFO, the "Guarantors"). The Notes will be issued pursuant to the provisions of
an Indenture, dated as of May 15, 1997 (the "Indenture"), between the Company,
as issuer, the Guarantors, and The Bank of New York, as Trustee (the "Trustee").
As an inducement to the Investor to enter into the Purchase Agreement and
in satisfaction of a condition to your obligations thereunder, the Company and
the Guarantors each agrees with the Investor, for the benefit of the registered
holders of the Notes (including, without limitation, the Investor), the Exchange
Notes (as defined below) and the Private Exchange Notes (as defined below)
(collectively, the "Holders"), as follows:
SECTION 1. REGISTRATION EXCHANGE OFFER. The Company and the Guarantors
shall use their respective best efforts to prepare and file within 45 days of
the original issue of the Notes with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to an offer (the "Registration Exchange
Offer") to the Holders of Transfer Restricted Notes (as defined in Section 6
hereof), who are not prohibited by any law or policy of the Commission from
participating in the Registration Exchange Offer, to issue and deliver to such
Holders, in exchange for the Notes, a like aggregate principal amount of debt
securities (the "Exchange Notes") of the Company issued under the Indenture and
identical in all material respects to the Notes (except for the transfer
restrictions relating to the Notes) that would be registered under the
Securities Act. The Company and the Guarantors shall use their respective best
efforts to cause such Exchange Offer Registration Statement to become effective
under
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the Securities Act within 150 days after the date of original issue of the Notes
and shall keep the Exchange Offer Registration Statement effective for not less
than 30 days (or longer, if required by applicable law) after the date notice of
the Registration Exchange Offer is mailed to the Holders (such period being
called the "Exchange Offer Registration Period"). It is understood and agreed
that the Exchange Offer Registration Statement and the Registration Exchange
Offer may include up to $300 million of additional Exchange Notes which shall be
offered to the holders of $300 million of Notes originally sold to BT Securities
Corporation, Alex. Xxxxx & Sons Incorporated and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation (the "Initial Purchasers") pursuant to a separate
purchase agreement (the "Additional Notes"); PROVIDED, HOWEVER, that if and to
the extent such inclusion of such additional Exchange Notes shall delay or
impede the filing or the declaration of the effectiveness of the Exchange Offer
Registration Statement or the registration of the Exchange Notes beyond 150 days
after the date of the original issue of the Notes then such additional Exchange
Notes shall not be so included or, if so included, such inclusion shall be
promptly withdrawn.
If the Company and the Guarantors effect the Registration Exchange Offer,
the Company and the Guarantors will be entitled to close the Registration
Exchange Offer 30 days after the commencement thereof provided that the Company
and the Guarantors have accepted all the Notes theretofore validly tendered in
accordance with the terms of the Registration Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly commence
the Registration Exchange Offer, it being the objective of such Registration
Exchange Offer to enable each Holder of Transfer Restricted Notes (as defined
below) electing to exchange such Transfer Restricted Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Notes in the ordinary course of
such Holder's business and has no arrangements with any person to participate in
the distribution of the Exchange Notes and is not prohibited by any law or
policy of the Commission from participating in the Registration Exchange Offer)
to trade such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. In connection with such Registration Exchange Offer, the Company and
the Guarantors shall use their respective best efforts to consummate the
Registration Exchange Offer and shall comply in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and other applicable laws and regulations in connection with the
Registration Exchange Offer.
The Company and the Guarantors each acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act, in
the absence of an applicable exemption therefrom, each Holder which is a
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broker-dealer electing to exchange Notes, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Notes received by such
Exchanging Dealer pursuant to the Registration Exchange Offer.
The Company and the Guarantors shall include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution" which shall contain a summary statement of the positions taken
or policies made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Registration Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or policies,
represent the prevailing views of the staff of the Commission.
The Company and the Guarantors shall use their respective best efforts to
keep the Exchange Offer Registration Statement effective and to amend and
supplement the prospectus contained therein, in order to permit such prospectus
to be lawfully delivered by all Exchanging Dealers subject to the prospectus
delivery requirements of the Securities Act and shall make such prospectuses
available to such Exchanging Dealers for such period of time after the
consummation of the Registration Exchange Offer as such persons must comply with
such requirements in order to resell the Exchange Notes; PROVIDED, HOWEVER, that
such period shall not exceed 120 days (unless extended pursuant to Section 3(j)
below); and, PROVIDED FURTHER, that such persons shall not be authorized by the
Company or the Guarantors to deliver and shall not deliver any such prospectus
after the expiration of such period in connection with the resales contemplated
by this paragraph.
The Company and the Guarantors shall make available for a period of 90 days
after the consummation of the Registration Exchange Offer, a copy of the
prospectus, and any amendment or supplement thereto, forming part of the
Exchange Offer Registration Statement to any broker-dealer for use in connection
with any resale of any Exchange Notes.
If the Investor is not permitted to participate in the Registration
Exchange Offer for any reason, then the Company and the Guarantors,
simultaneously with the delivery of the Exchange Notes pursuant to the
Registration Exchange Offer (including the exchange offer relating to the
Additional Notes), shall issue and deliver to the Investor upon the written
request of the Investor, in exchange (the "Private Exchange") for the Notes held
by such Purchaser, a like principal amount of debt
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securities of the Company issued under the Indenture and guaranteed by the
Guarantors pursuant to the Guarantee and the Subordinated Guarantee and
identical in all material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the several states
of the United States) to the Notes (the "Private Exchange Notes"). The Notes,
the Exchange Notes and the Private Exchange Notes are herein collectively called
the "Securities".
In connection with the Registration Exchange Offer, the Company and the
Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registration Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date notice thereof
is mailed to the Holders;
(c) utilize the services of a depositary for the Registration
Exchange Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last business day on which the
Registration Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Registration Exchange Offer
or the Private Exchange, as the case may be, the Company and the Guarantors
shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registration Exchange Offer and the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
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The Indenture will provide that the Exchange Notes will not be subject to
the transfer restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class separate from one
another on any matter.
Interest on each Exchange Note and Private Exchange Note issued pursuant to
the Registration Exchange Offer and in the Private Exchange will accrue (i) from
the later of (a) the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or (b) if the Note is surrendered for
exchange on a date in a period which includes the record date for an interest
payment date to occur on or after the date of such exchange and as to which
interest will be paid, the date of such interest payment date or (ii) if no
interest has been paid on the Notes, from the date of original issue of the
Notes.
Each Holder participating in the Registration Exchange Offer shall be
required to represent to the Company and the Guarantors that at the time of the
consummation of the Registration Exchange Offer (i) any Exchange Notes received
by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to participate
in the distribution of the Notes or the Exchange Notes within the meaning of the
Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405
of the Securities Act, of the Company or any Guarantor or if it is an affiliate,
such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Notes and (v) if such Holder is a
broker-dealer, that it will receive Exchange Notes for its own account in
exchange for Notes that were acquired as a result of market-making activities or
other trading activities and that it will be required to acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company and the Guarantors
will ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration Statement, and any
supplement to such prospectus, at the time of issuance does not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
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SECTION 2. SHELF REGISTRATION. If (i) the Company and the Guarantors
determine that a Registration Exchange Offer, as contemplated by Section 1
hereof, is not available or may not be consummated as soon as practicable after
the last date the Registration Exchange Offer is open because it would violate
applicable law or the applicable interpretations of the staff of the Commission,
(ii) the Registration Exchange Offer is not consummated within 180 days of the
date of original issue of the Notes, (iii) the Investor so requests with respect
to the Notes (or the Private Exchange Notes) not eligible to be exchanged for
Exchange Notes in the Registration Exchange Offer and held by it following
consummation of the Registration Exchange Offer or (iv) any Holder (other than
an Exchanging Dealer) is not eligible to participate in the Registration
Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer)
that participates in the Registration Exchange Offer, such Holder does not
receive freely tradeable Exchange Notes on the date of the exchange for validly
tendered (and not withdrawn) Notes, the Company and the Guarantors shall take
the following actions:
(a) The Company and the Guarantors shall use all reasonable
efforts to prepare and file, as promptly as practicable, with the Commission and
thereafter to cause to be declared effective a registration statement (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, a "Registration Statement") on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Notes, by the Holders thereof from time to time in accordance with the methods
of distribution set forth in the Shelf Registration Statement and Rule 415 under
the Securities Act (hereinafter, the "Shelf Registration"); PROVIDED, however,
that no Holder (other than the Investor) shall be entitled to have any
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder. It is agreed that the holders of the Additional
Notes are entitled to have the Additional Notes held by them included in the
Shelf Registration Statement and that the provisions of the registration rights
agreement dated as of the date hereof, among the Company, the Guarantors and the
Initial Purchasers shall be applicable to such holders; PROVIDED, HOWEVER, that
if and to the extent such inclusion of such Additional Notes shall delay or
impede the filing or the declaration of the effectiveness of the Shelf
Registration Statement or the registration of the Additional Notes beyond 180
days after the date of the original issue of the Notes, then such Additional
Notes shall not be so included or, if so included, such inclusion shall be
promptly withdrawn.
(b) The Company and the Guarantors shall use all reasonable
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, until the period referred to in Rule 144(k)
under the Securities Act after the original issue date of the Notes expires (or
for such longer period if extended pursuant to Section 3(j) below) or such
shorter period that will terminate when all the
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Securities covered by the Shelf Registration Statement have been sold pursuant
thereto.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company and the Guarantors shall cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
SECTION 3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registration Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to the
Investor (if it is a Holder), prior to the filing thereof with the Commission, a
copy of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall not file any
such Registration Statement or amendment thereto or any prospectus or any
supplement thereto (including such documents which, upon filing, would be
incorporated or deemed to be incorporated by reference therein and amendments to
such documents other than documents required to be filed pursuant to the
Exchange Act) to which the Investor (if it is a Holder) shall reasonably object,
except for any Registration Statement or amendment thereto or prospectus or
supplement thereto (a copy of which has been previously furnished to the
Investor (if it is a Holder) and its counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel)) which counsel to the
Company and the Guarantors has advised the Company and the Guarantors in writing
is required to be filed in order to comply with applicable law; (ii) include
information substantially to the effect set forth (A) in Annex A hereto on the
cover of a prospectus forming part of the Exchange Offer Registration Statement,
(B) in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, (C) in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement and (D) include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registration
Exchange Offer; and (iii) to the extent required by law or interpretation of the
staff of the Commission, in the case of Shelf Registration Statement, include
the names of the Holders who propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(b) The Company and the Guarantors shall notify the Holders and
any Participating Broker-Dealer from whom the Company or any of the
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Guarantors has received prior written notice stating that it will be a
Participating Broker-Dealer in the Registration Exchange Offer (which notice
pursuant to clauses (ii) through (v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made) promptly, and, if requested by the Holders or any such
Participating Broker-Dealer, confirm such notice in writing:
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or any of the Guarantors
or their legal counsel of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(v) of the happening of any event that requires the Company
or any of the Guarantors to make changes in the Registration Statement or
the prospectus in order that the Registration Statement or the prospectus
do not contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(vi) of any determination by the Company or any of the
Guarantors that a post-effective amendment to a Registration Statement
would be appropriate.
(c) The Company and the Guarantors shall make every reasonable
effort to prevent the issuance, and if issued to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the
Registration Statement and shall provide prompt written notice to each Holder of
the withdrawal of any such order.
(d) The Company and the Guarantors shall furnish to each Holder
of Securities included within the coverage of the Shelf Registration, without
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charge, at least one conformed copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference or exhibits thereto, unless
a Holder so requests in writing).
(e) The Company and the Guarantors shall deliver to any Holder
that so requests, without charge, at least one conformed copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated therein by
reference or exhibits thereto, unless any such Holder so requests in writing).
(f) The Company and the Guarantors shall deliver to each Holder
of Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company and each Guarantor
consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by, and as contemplated by, the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall deliver to any
Participating Broker-Dealer or any Exchanging Dealer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such person may reasonably
request, during the period not exceeding 120 days following the consummation of
the Registration Exchange Offer. The Company and each Guarantor consents,
subject to the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by any Participating Broker-Dealer or Exchanging
Dealer and such other persons required to deliver a prospectus following the
Registration Exchange Offer in connection with the offering and sale of the
Exchange Notes covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement; PROVIDED,
HOWEVER, that such persons shall not be authorized by the Company or any
Guarantor to deliver and shall not deliver any such prospectus after the
expiration of the period referred to in the immediately preceding sentence, in
connection with the resales contemplated by this paragraph.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Company and the Guarantors shall use their
respective best efforts to register or qualify or cooperate with the Holders of
the Securities included therein and their respective counsel in connection with
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of such states of the United States as any Holder of
the Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable
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such Holder to offer and sell in such jurisdictions the Securities covered by
such Registration Statement owned by such Holder; PROVIDED, HOWEVER, that
neither the Company nor any Guarantor shall be required to (i) qualify generally
or as a foreign corporation to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then so
subject.
(i) The Company and the Guarantors shall cooperate with the
Holders of the Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the Holders may request at least two business days prior to closing of any
sale of the Securities pursuant to such Shelf Registration Statement.
(j) If any event contemplated by paragraphs (ii) through (vi) of
Section 3(b) above occurs during the period for which the Company or any
Guarantor is required to maintain an effective Registration Statement, the
Company and the Guarantors shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders of the Notes or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. If
the Company or any Guarantor notifies the Holders of the Securities and any
known Participating Broker-Dealer in accordance with paragraphs (ii) through
(vi) of Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders of the
Securities and any such Participating Broker-Dealers shall suspend use of such
prospectus until the Company or such Guarantor has amended or supplemented the
prospectus to correct such misstatement or omission, and the period of
effectiveness of the Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the Holders of the
Securities and any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus pursuant to this Section 3(j); PROVIDED,
HOWEVER, that the minimum time period before the Company or any Guarantor shall
be entitled to close the Registration Exchange Offer shall be extended only to
the extent required by the Commission. Each Holder and any Participating
Broker-Dealers agree that upon receipt of any such notice from the Company it
will not distribute copies of the prospectus that are the subject of such notice
and will retain such copies in its files.
(k) Not later than the effective date of the applicable
Registration Statement, the Company and the Guarantors will obtain a CUSIP
number
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for the Transfer Restricted Notes, the Exchange Notes or the Private Exchange
Notes, as the case may be, and provide the Trustee with printed certificates for
the Notes, the Exchange Notes or the Private Exchange Notes, as the case may be,
in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply in all material
respects with all rules and regulations of the Commission to the extent and so
long as they are applicable to the Registration Exchange Offer or the Shelf
Registration and will make generally available to its securities holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the Guarantors shall cause the Indenture to
be qualified under the Trust Indenture Act of 1939, as amended, in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company and the Guarantors may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to furnish to
the Company and the Guarantors such information regarding the Holder and the
distribution of the Securities as the Company may from time to time reasonably
request for inclusion in the Shelf Registration Statement, and the Company and
the Guarantors may exclude from such registration the Securities of any Holder
that fails to furnish such information within a reasonable time after receiving
such request.
(o) In the case of any Shelf Registration, the Company and the
Guarantors shall enter into such customary agreements (including if requested an
underwriting agreement in customary form) and take all such other action, if
any, as the Holders of a majority of the Securities being sold shall reasonably
request in order to facilitate the disposition of the Securities pursuant to
such Shelf Registration.
(p) In the case of any Shelf Registration, the Company and the
Guarantors shall make available for inspection by a representative of the
Holders of Securities being sold, its counsel and an accountant retained by such
Holders, in a manner designed to permit underwriters to satisfy their due
diligence investigation under the Securities Act, all financial and other
records, pertinent corporate documents and properties of the Company and the
Guarantors customarily inspected by underwriters in primary underwritten
offerings and cause the officers, directors and employees of the Company and its
subsidiaries (including the Guarantors) to
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supply all information reasonably requested by, and customarily supplied in
connection with primary underwritten offerings to, any such representative,
attorney or accountant in connection with such registration; PROVIDED, HOWEVER,
that any records, information or documents that are designated by the Company or
any Guarantor as confidential at the time of delivery of such records,
information or documents shall be kept confidential by such persons, unless (i)
such records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or documents is
required by court or administrative order or (iii) disclosure of such records,
information or documents, in the written opinion of counsel to such person, is
otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
(q) In the case of any Shelf Registration, the Company and the
Guarantors, if requested by any Holder of Securities covered thereby, shall each
(i) cause their counsel to deliver an opinion and updates thereof relating to
the Securities in customary form addressed to such Holders and the managing
underwriters, if any, and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement covering matters customarily
covered in opinions requested in underwritten offerings, (ii) cause its officers
to execute and deliver such documents and certificates and updates thereof as
may be reasonably requested by any underwriters of the applicable Securities,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company and the
Guarantors made pursuant to, and to evidence compliance with any customary
conditions contained in, an underwriting agreement and (iii) cause its
independent public accountants to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(r) If a Registration Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Notes by Holders to the Company and the
Guarantors (or to such other Person as directed by the Company or any Guarantor)
in exchange for the Exchange Notes or the Private Exchange Notes, as the case
may be, the Company shall xxxx, or cause to be marked, on the Notes so exchanged
that such Notes are being canceled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, and in no event shall the Notes be
marked as paid or otherwise satisfied.
(s) The Company and the Guarantors will use their respective
best efforts to cause the Securities covered by a Shelf Registration Statement
to be rated by two nationally recognized statistical rating organizations (as
such term is defined in Rule 436(g)(2) under the Securities Act) if so requested
by
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Holders of a majority in aggregate principal amount of Securities covered by
such Shelf Registration Statement, or by the managing underwriters, if any.
(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company and the Guarantors shall assist such
broker-dealer in complying with the requirements of such Rules and By-Laws,
including by (i) if such Rules, including Rule 2720, shall so require, engaging
a "qualified independent underwriter" (as defined in such Rule) to participate
in the preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Conduct Rules of the NASD.
SECTION 4. REGISTRATION EXPENSES. The Company and the Guarantors shall
jointly and severally pay all fees and expenses incident to the performance of
or compliance with this Agreement by the Company and the Guarantors including,
without limitation, (i) all Commission, stock exchange or NASD registration and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or Blue Sky laws (including reasonable fees and
disbursements of counsel for any underwriters or holders in connection with Blue
Sky qualification of any of the Securities), (iii) all expenses of any persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any prospectus, any amendments or
supplements thereto, and all expenses of printing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, and (v) the
fees and disbursements of counsel for the Company and the Guarantors and in the
event of a Shelf Registration, the reasonable fees and disbursements of one firm
of counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby and of the independent public accountants of the
Company, including the expense of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding fees
and expenses of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Securities by a Holder.
14
SECTION 5. INDEMNIFICATION. (a) The Company and each of the
Guarantors jointly and severally agree to indemnify and hold harmless each
Holder of the Securities, any Participating Broker-Dealer, and each person, if
any, who controls such Holder or such Participating Broker-Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, such Holder or such
Participating Broker-Dealer, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus (as
amended or supplemented if the Company or any Guarantor shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to such Holder or Participating
Broker-Dealer furnished to the Company or any Guarantor in writing by such
Holder or Participating Broker-Dealer expressly for use therein; PROVIDED that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling or affiliated with such Holder or
Participating Broker-Dealer, if a copy of the final prospectus (as then amended
or supplemented if the Company or any Guarantor shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Holder or Participating Broker-Dealer to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) Each Holder of the Securities, severally and not jointly,
agrees to indemnify and hold harmless the Company, each of the Guarantors, other
selling Holders, directors of the Company, directors of the Guarantors, the
officers of the Company or any Guarantor who sign a Registration Statement and
each person, if any, who controls the Company or any Guarantor or any selling
Holders, within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Guarantors to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in a Registration Statement, any preliminary
prospectus, prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
15
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such reasonable fees and expenses shall be
reimbursed as they are incurred. If an indemnified party includes (x) the
Investor or such controlling persons of the Investor, such firm shall be
designated in writing by the Investor or (y) Holders of Securities (other than
the Investor) or controlling persons of such Holders, such firm shall be
designated in writing by Holders of a majority-in aggregate principal amount of
such Securities. In all other cases, such firm shall be designated by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding and for which indemnity could have been sought hereunder.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 5 is unavailable to an indemnified party or
16
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors on the one hand and any such Holder, Participating Broker-Dealer or
other party on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before deducting
expenses) received by the Company and the Guarantors and the total discounts and
commissions received or realized by such Holder, Participating Broker-Dealer or
other party in respect thereof, in each case as set forth in the Final
Memorandum, bear to the aggregate offering price of such Securities. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or by such Holder, Participating
Broker-Dealer or other party and the parties relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Holders respective obligations to contribute pursuant to this Section 5 are
several in proportion to the respective amount of Notes they have purchased, not
joint.
(e) The Company and the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) of
this Section 5. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder of Securities shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities were sold by such Holder pursuant to a
Registration Statement exceeds the amount of any damages that such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
17
(f) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or Participating Broker-Dealer or any person controlling such
Holder or Participating Broker-Dealer or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) the sale
of the Securities. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "Additional Interest") with respect to the
Securities shall be assessed as follows if any of the following events occur
(each such event in clauses (i) through (iii) below a "Failure to Register"):
(i) If by July 6, 1997, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) If by October 19, 1997, neither the Registration Exchange Offer
is consummated nor, if required in lieu thereof, the Shelf Registration
Statement is declared effective by the Commission; or
(iii) If, after November 18, 1997, and after either the Exchange
Offer Registration Statement or the Shelf Registration Statement is
declared effective, (A)_such Registration Statement thereafter ceases to be
effective prior to completion of the Exchange Offer or the sale of all the
Transferred Restricted Notes registered pursuant to the Shelf Registration
Statement, as the case may be (except upon termination of the period
specified in Section 2(j) hereof or as permitted in paragraph (b) of this
Section 6); or (B) such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer Restricted Notes
during the periods specified in this Agreement (except as permitted in
paragraph (b) of this Section 6) because either (1) any event occurs as a
result of which the related prospectus forming part of such Registration
Statement would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading or (2)
it shall be necessary to amend such Registration Statement, or supplement
the related prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Additional Interest shall accrue on the Notes over and above the interest
set forth in the title of the Notes from and including the date on which any
18
such Failure to Register shall occur to but excluding the date on which all such
Failures to Register have been cured, at a rate of 0.50% per annum.
(b) A Failure to Register referred to in Section 6(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Registration
Statement or the related prospectus if (i) such Failure to Register has occurred
solely as a result of (x) the filing of a post-effective amendment to such
Registration Statement to incorporate annual audited financial information with
respect to the Company and the Guarantors where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) the occurrence of other material events or
developments with respect to the Company or any Guarantor that would need to be
described in such Registration Statement or the related prospectus and (ii) in
the case of clause (y), the Company and the Guarantors are proceeding promptly
and in good faith to amend or supplement such Registration Statement and related
prospectus to describe such events or, in the case of material developments that
the Company and the Guarantors determine in good faith must remain confidential
for business reasons, the Company and the Guarantors are proceeding promptly and
in good faith to take such steps as are necessary so that such developments need
no longer remain confidential; PROVIDED, HOWEVER, that in any case, if such
Failure to Register occurs for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day following such 45 day period until the date on which such Failure to
Register is cured.
(c) Any amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of Section 6 above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until (i) the
date on which such Transfer Restricted Note has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Note in the Registration
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registration Exchange Offer of a Transfer Restricted Note for an Exchange Note,
the date on which such Exchange Note is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Transfer Restricted Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Transfer Restricted Note is distributed
to the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
19
SECTION 7. RULES 144 AND 144A. The Company and the Guarantors shall
use their respective best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner (except to the
extent that any Guarantor is permitted to omit filing such reports in accordance
with the terms of any ruling or no-action letter issued by the Securities and
Exchange Commission) and, if at any time the Company or any Guarantor is not
required to file such reports, it will, upon the request of any Holder of
Transfer Restricted Notes, make publicly available other information so long as
necessary to permit sales of Securities pursuant to Rules 144 and 144A. The
Company and the Guarantors covenant that they will take such further action as
any Holder of Transfer Restricted Notes may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company and the Guarantors will provide a
copy of this Agreement to prospective purchasers of Notes identified to the
Company and the Guarantors by the Purchasers upon request. Upon the request of
any Holder of Transfer Restricted Notes, the Company and the Guarantors shall
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
SECTION 8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes and any Additional Notes included in such offering;
PROVIDED, HOWEVER, that the Managing Underwriters shall be reasonably
satisfactory to the Company and the Guarantors.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Notes on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other: documents reasonably required under the terms of such
underwriting arrangements.
SECTION 9. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, except by
the Company, each of the Guarantors and the written consent of the Holders of a
majority in principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consent.
20
(b) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company and the Guarantors in
accordance with the provisions of this Section 9(b), which address
initially is, with respect to the Investor:
Oak Hill Securities Fund, L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
with a copy to:
Oak Hill Advisors, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. August
(2) if to the Company or any Guarantor, at the following
address:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
with a copy to:
The Cypress Group, L.L.C.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxxx,
Vice Chairman
21
Scotsman Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx and Xxx Xxxxxx
- and -
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. Neither the Company nor any
Guarantor has, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Company and the Guarantors and their respective successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
22
(h) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates
(including the Guarantors) (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Guarantors a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Investor and the Company and the Guarantors in accordance
with its terms.
Very truly yours,
XXXXXXXX SCOTSMAN, INC.
By:/s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and Corporate
Counsel
MOBILE FIELD OFFICE COMPANY
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Secretary
WILLSCOT EQUIPMENT, LLC
By: Xxxxxxxx Scotsman, Inc.,
a member
By:/s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and
Corporate Counsel of Member
Accepted as of the date hereof
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its general partner
By: Oak Hill Securities MGP, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the Expiration Date (as definer herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company, the
Guarantor and the Subordinated Guarantor have agreed that, for a period of 120
days after the Expiration Date, they will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until ____________, 1997, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.(1)
The Company, the Guarantor and the Subordinated Guarantor will not
receive any proceeds from any sale of Exchange Notes by broker-dealers.
Exchange Notes received by broker-dealers for their own account pursuant to the
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to-such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Company, the
Guarantor and the Subordinated Guarantor will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer
------------------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
that requests such documents in the Letter of Transmittal. The Company, the
Guarantor and the Subordinated Guarantor have agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and will indemnify the Holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
